Democracy and fundamental rights of individuals – are international human rights conventions superior to Danish laws?

Denmark has committed itself to comply with the European Convention on Human Rights administered by the European Court of Human Rights. The Danish Constitution also protects human rights, but the Convention on Human Rights can be interpreted more broadly in some aspects, meaning that the European Court of Human Rights interprets the convention differently than Danish courts. Does this mean that the Convention on Human Rights substitutes the Danish Constitution, and that the Court of Human Rights is to have the final word?

2012.11.26 | Tine Bagger Christiansen

This is part of the theme of the Nordic seminar on international conventions held at Aarhus University, School of Business and Social Sciences on Monday 19 and Tuesday 20 November 2012.

? To put it bluntly, the question is whether the European Convention on Human Rights to a large extent must or should be read into the Danish Constitution to give the Court of Human Rights the final word when the constitutional boundaries for the Danish parliament's competencies are determined, says Professor Michael Hansen Jensen from Aarhus University, School of Business and Social Sciences, and continues:

Caution meets activism
Danish courts have traditionally taken a cautious line when interpreting the Danish Constitution. If the wording and intentions of the Danish Constitution do not provide an answer, the Danish Courts have traditionally not wanted to set aside the Danish Parliament's interpretation of the Danish Constitution. A similar cautiousness has not been demonstrated by the Court of Human Rights which is interpreting the convention in a so-called dynamic manner, taking a more free approach to the wording of the convention.  As a result, the Court of Human Rights often adds more meaning to the protection offered under the convention than the Danish courts do under similar constitutional provisions.

Example
The right to freedom of association demonstrates the difference. This right is described in the Convention on Human Rights as well as in the Danish Constitution. But whereas the Danish courts have held that the Danish constitutional provisions are not only protecting the right to form and join associations, the Court of Human Rights has found that the Convention on Human Rights also protects the right to not being part of an association. This has resulted in a prohibition against exclusive agreements in the labour market. 

The consequence
It has traditionally been the Government's and the Parliament's responsibility to ensure that Danish legislation meets its international obligations. If the Convention on Human Rights becomes part of the Danish Constitution, the responsibility will to a great extent rest with the courts, meaning that the Court of Human Rights will have the final word.

This issue is also addressed in other Nordic countries. At the conference, targeted at legal academics and practising lawyers, experiences and views will be exchanged in anticipation of mutual enrichment. The theme will be part of a discussion on democracy and fundamental rights of individuals.

Read the programme

Related news:

AU Professor to help decide fundamental rights in the EU

Further information


Professor Michael Hansen Jensen
Aarhus University, School of Business and Social Sciences

Email: mhj@jura.au.dk
Tel.: +45 87 16 59 36

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